Kishorilal S/O Laxminarayan ... vs Leelabai Wd/O Nandiram Holani And ...
2002 Latest Caselaw 612 Bom

JUDGMENT

D.Y. Chandrachud, J.

1. The applicant's father Laxminarayan owned a residential house bearing Municipal House No. 208 in Ward No. 25 at Waruha. The ground floor of the house consisting of four rooms was let out to the tenant in February 1972. The tenant started conducting the business of a grocery shop in

the premises. Several agreements of lease were executed between the parties and by the last of those agreements executed on 10-6-1980, the rent was fixed at Rs. 375/- per month. The last of the lease agreements expired on 31-1-1983.

2. Since the tenants failed to vacate and hand over the possession of the rented premises upon the expiry of the lease, the applicant moved the Rent Controller for the grant of his prior written permission under Clause 13 of the C. P. and Berar Rent Control Order, 1949. The Rent Controller granted the permission as prayed for under Sub-clauses (ii), (v) and (vi) of Clause 13(3) of the Rent Control Order. The aforesaid sub-clauses deal with a situation where the tenant is habitually in arrears of rent; where the tenant has secured alternative accommodation, or has left the area for a continuous period of four months and does not reasonably need the premises; and where the landlord needs the premises for his bona fide occupation provided he is not occupying any other premises of his own in the city or town concerned.

3. After the Rent Controller granted permission to the applicant to terminate the tenancy, the applicant issued on 16-5-1986 a notice to the tenant terminating the tenancy with effect from 30-6-1986. In response to the notice of termination, the tenant by his reply dated 29-5-1986 stated that he had challenged the order of the Rent Controller by filing an appeal against the order dated 21-4-

1986. In the circumstances, the tenant contended that since the appeal was pending, the notice which had been issued was premature. The tenant stated that he was ready and willing to deposit the arrears of rent in Court.

4. The Appeal that was filed by the tenant against the order of the Rent Controller was disposed of by the Deputy Collector on 9-4-1987. The Appellate Authority confirmed the order which was passed by the Rent Controller. Upon the order that was passed by the Appellate Authority, the applicant issued a notice on 17-4-1987 terminating the tenancy of the tenant with effect from 31-5-1987. The tenant thereupon filed a Writ Petition before this Court under Article 227 of the Constitution of India for challenging the order of the Appellate Authority and it has been stated before the Court that the ground that was urged in the Writ Petition was that the other legal representatives of the appellant's father had not applied for permission before the Rent Controller and, therefore, the application was vitiated. The learned counsel stated that the Writ Petition came to be dismissed by this Court on 25-1-1990. In the meantime the applicant had instituted Regular Civil Suit No. 210 of 1987 for eviction, possession and for payment of the arrears of rent. The suit came to be disposed of by the learned 2nd Joint Civil Judge, Sr. Dn., Wardha on 23-8-1989. The trial Court dismissed the suit save and except for the prayer for recovery of arrears of rent. The learned trial Judge was of the view that the second notice which had been issued by the applicant on 17-4-1987 would constitute a waiver of the first notice which had been issued and since the notice issued on 17-4-1987 was not supported by the fresh permission of the Rent Controller, the suit was liable to be dismissed and the proceedings for eviction had to fail. The appeal filed by the applicant against the order of the learned trial Judge was dismissed by the learned 2nd Additional District Judge, Wardha, on 19-11-1994. The applicant in these revisional proceedings under Section 115 of the Code of Civil Procedure seeks to challenge the orders passed by the Courts below.

5. On behalf of the applicant, it has been urged that the view which has been taken by the Courts below in these proceedings is ex facie contrary to the law which has been laid down in several judgments of the Supreme Court and of this Court. The learned counsel urged that though the applicant had issued a notice on 16-5-1986 after the order of the Rent Controller granting permission to terminate the tenancy, the original tenant had intimated to the applicant that he had adopted proceedings in appeal before the Appellate Authority to impugn the permission which had been granted by the Rent Controller. The order of the Rent Controller was confirmed by the Appellate Authority on 9-4-1987 and the notice that was issued on 17-4-1987 cannot be construed in any manner as amounting to a waiver of the first notice dated 16-5-1986 or as being reflective of an intention to create a fresh tenancy for the period after the issuance of the first notice. In any event, it was urged that absolutely no proof was offered by the tenant, the respondent herein, in support of the defence that a fresh tenancy had been created after the first notice dated 16-5-1986.

6. On the other hand, the learned counsel appearing on behalf of the respondents has sought to sustain the orders passed by the two courts below by urging that (i) the second notice that was issued on 17-4-1987 made no reference to the earlier notice dated 16-5-1986, which would imply that, the first notice had been waived; and (ii) the foundation of the suit ought to have been the first notice dated 16-5-1987 but the cause of action which is pleaded was the notice of termination dated 17-4-1987.

7. In considering the submissions, which have been urged by the learned counsel, regard must be had at the outset to the relevant provisions of the C. P. and Berar Letting of Houses and Rent Control Order, 1949. Sub-clause (1) of Clause 13 of the Rent Control Order prohibits every landlord from giving a notice to a tenant determining the lease save and except with the previous written permission of the Rent Controller. Similarly, where a lease is determinable by efflux of time, the landlord is prohibited from requiring the tenant to vacate the premises, if the tenant is willing to continue the lease on the same terms and conditions, except with the previous permission of the Rent Controller. Sub-clause (3) of Clause 13 then provides for the circumstances in which or the grounds upon which the Controller may issue the permission as applied for. In the present case, as already noted, the Rent Controller granted permission on the ground that the tenant was habitually in arrears of rent, that he had secured alternative accommodation and that the premises were needed by the landlord for his own bona fide occupation. The next important provision which needs to be considered is Clause 13A of the Order which stipulates that no decree for eviction shall be passed in a suit or proceeding unless the landlord produces a written permission of the Controller as provided by Sub-clause (1) of Clause 13. Clause 21 of the Rent Control Order provides a remedy of an appeal against the decision of the Rent controller and Sub-clause (3) thereof stipulates that the decision of the Collector, and subject only to such decision, an order of the Controller shall be final and no further appeal or revision or application for review shall lie from such decision to any authority whatsoever.

8. The scheme of Rent Control Order would thus demonstrate beyond doubt that the protection which is granted to the tenant operates at two distinct stages. The first stage is, when the landlord intends to terminate the tenancy, for, the Order stipulates that without the previous written permission of the Rent Controller, even the termination of a tenancy cannot take place and in a situation where a lease is determinable by efflux of time the landlord cannot require the tenant to vacate the premises save and except with the permission of the Rent Controller. The second stage of the protection which is granted by the Rent Control Order is in regard to the passing of a decree for eviction. Clause 13A which was introduced by an amendment in 1989, stipulates that no decree for eviction shall be passed unless the landlord produces a written permission of the Controller.

9. The decision of the Rent Controller is final subject to the decision of the Collector in appeal. Now it is a well settled principle of law that the landlord to whom a previous written permission has been granted by the Rent Controller is not duty bound to wait for the outcome of either an appeal, or as the case may be, a Writ Petition that may be instituted by the tenant for challenging the order of permission that has been granted by the Rent Controller. The landlord may choose to wait for the outcome of a writ proceeding or, without waiting to do so, may issue a notice of termination. If he issues a notice of termination without waiting for the outcome of the appellate proceeding or, as the case may be, the outcome of a writ proceeding, he does so at his risk and peril. If the order of Rent Controller is set aside in appeal or by the High Court in the exercise of the writ jurisdiction, all proceedings which have flowed out of the order of the Rent Controller necessarily stand invalidated. Therefore, it has been held by this Court that if the permission granted by Rent Controller is revoked then a decree that has been passed on the basis of permission, which had been granted by the Rent Controller, becomes void and unenforceable by reason of the order passed in the writ petition questioning the permission granted by the Rent controller. These principles are settled in view of several decisions of this Court and it is only necessary for the record to refer to the decision in P. K. Deshmukh v. Sudhabai, 1974 Mh.L.J. 640.

10. The question which often arises in matters, such as the present, is as to whether the conduct of the landlord in issuing a fresh notice of termination after the order of the Appellate Authority would amount to a waiver of the first notice or the creation of a fresh contractual relationship of tenancy after the issuance of a prior notice of termination. Section 116 of Transfer of Property Act, 1882 provides that if a lessee or under lessee of a property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts the rent from the lessee or under lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in Section 106. Section 113 of the Transfer of Property Act, 1882 provides that a notice which is given under Section 111(h) is waived with the express or implied consent of the person to whom it is given, by any act on the part of a person giving it showing an intention to treat the lease as subsisting. These provisions have been construed in two judgments of the Supreme Court and it would be necessary to refer to those judgments for the purpose of these proceedings. In

Ganga, Dutt Murarka v. Kartik Chandra Das and Ors. . Justice J. C. Shah (as the learned Chief Justice then was), speaking for a Bench of three learned Judges of the Supreme Court held, after referring to the provisions of Section 116 that it is well settled that where a contractual tenancy to which the Rent Control legislation applies has expired by efflux of time or by a notice to quit and the tenant continues in possession of the premises, acceptance of rent by the landlord after the expiration or determination of lease, by virtue of the statutory protection conferred on the tenant, will not afford a ground for holding that the landlord has assented to a new contractual tenancy. The same view, the Court noted, was taken by the Federal Court in Kavi Khushroo v. Bai Jerbai , where it was held that where the Rent Control Act applies to a tenancy, the tenant enjoys a statutory immunity from eviction even after the lease has expired. Hence, the landlord cannot eject him except on specified grounds and the acceptance of rent in such a case from the statutory tenant could not be regarded as an evidence of a new agreement of tenancy. In Ganga Dutt Murarka's case (supra) the Supreme Court held that at the same time there is no . prohibition for a landlord to enter into a fresh contract with a tenant whose right of accommodation is determined and who remains in occupation by virtue of a statutory immunity. Apart from an express contract to that effect, the question which arises is as to whether the conduct of the parties would justify an inference in the facts of each case, as to whether there was the creation of a fresh contractual tenancy.

11. In a subsequent judgment of two learned Judges of the Supreme Court in Bhawanji Lakhamshi v. Himatlal Jamnadas, 1973 Mh.L.J. 1, the judgment in Ganga Dutt Murarka was followed. The Supreme Court held that in the case of a tenancy, which is not protected by the Rent Control legislation, the basis of Section 116 of the Transfer of Property Act, 1882 is that the landlord is entitled, when he does not accept the rent after the notice to quit to file a suit and obtain a decree for possession. The position under the Rent Control Act is, however, different and in that context the Supreme Court held thus :

"That is not so where Rent Act, exists: and if the tenant says that landlord accepted the rent not as statutory tenant but only as legal rent indicating his assent to the tenant's continuing in possession, it is for the tenant to establish it. No attempt has been made to establish it in this case and there is no evidence, apart from the acceptance of the rent by the landlord, to indicate even remotely that, he desired the appellants to continue in possession after the termination of the tenancy. Besides, as we have already indicated the animus of the tenant in tendering the rent is also material. If he tenders the rent as the rent payable under the statutory tenancy, the landlord cannot, by accepting it as rent, create a tenancy by holding over. In such a case the parties would not be ad idem and there will be no consensus."

12. In the present case, the Rent Controller granted his permission in writing under Clause 13 of the Rent Control Order on 21-4-1986. Though a notice of termination was issued by the landlord on 16-5-1986, in his reply dated 29-5-1986 the tenant adverted to the proceedings which he had adopted for challenging the order that was passed by the Rent Controller and contended that the notice which was issued was premature. As already noted earlier, the order which is passed by the Rent Controller is final subject to such order as may be passed in appeal by the Collector. In the present case, the order of the Rent Controller was confirmed by the Collector on 9-4-1987 and thereupon a notice came to be issued by the applicant on 17-4-1987 terminating the tenancy. In a similar case where the landlord had after issuing a notice of termination upon the order of the Rent Controller, received an intimation from the tenant that he had challenged the order of the Rent Controller in appeal and the landlord thereupon had waited for the outcome of the appellate proceedings before issuing another notice to quit, a learned Single Judge of this Court held in Hari Prasad and Anr. v. Nathmal Chunilal, 1974 Mh,L.J. 637 that this would not be indicative of an intention to either waive the earlier notice or establish a fresh contractual relationship of tenancy, after the first notice had been given. In holding thus, the learned Single Judge made a reference to several judgments of the Supreme Court including that in Ganga Dun Murarka and Bhawanji' s case (supra).

13. In a case such as the present, the Court must have due regard to the fact that the relationship of tenancy between the parties was subject to statutory regulation and to the protection which has been granted to the tenant by the provisions of the Rent Control Order. The Supreme Court has held that in a situation such as the present, even the acceptance of rent by the landlord would not be indicative of an intention to establish a fresh contractual relationship of tenancy or to waive the earlier notice of termination. Significantly, it is not the case of the tenant that any additional ground for eviction was sought to be urged in the notice issued on 17-4-1987. The tenancy was sought to be terminated on the same grounds which have been urged in the notice dated 16-5-1986. The notice dated 17-4-1987 came to be issued only because the order of the Rent Controller became final upon the dismissal of the appeal by the Collector under Clause 21(3). That being the position, it is impossible, consistent with the law which has been laid down by the Supreme Court and by this Court, to come to the conclusion that there was any intention to waive the earlier notice or to create a fresh contractual relationship of tenancy.

14. The learned trial Judge has referred to the judgment of a learned Single Judge of this Court in Gendlal Bhuramal v. Vjaykumar Dattatraya Khot, 1984 Mh.LJ. 1071. That case stands, however, completely on a different footing. In that case, upon the grant of the permission by the Rent Controller, the landlord issued a notice of termination. Thereafter, an appeal by the tenant against the order of the Rent Controller was dismissed. The landlord had thereafter moved the Rent Controller for the enhancement of the rent which was fixed earlier and also accepted the rent during the pendency of the application and a fresh notice of termination was issued by the landlord. This was, therefore, a case where the landlord had not merely accepted the rent from the tenant after issuing an earlier notice of termination but had even moved an application for enhancement of the rent. The facts of that case were therefore clearly distinguishable. The learned Judge has then placed reliance on the statement of the applicant in the course of his evidence that the respondent was a tenant till 31-5-1987. That, however, is a circumstance of no relevance whatsoever because there can be no dispute about the proposition that the statutory protection which is granted by the Rent Control Order to the tenant continues to subsist until a decree for eviction is passed. Similarly, the circumstance that the applicant had sought to claim rent from the respondent cannot, by any stretch of imagination, be regarded as a circumstance which would establish an intention to create a new tenancy. That aspect of the matter is covered by the judgments of the Supreme Court in Ganga Dun Murarka as well as in Bhawanji's case (supra). Where a landlord makes a claim of rent from a tenant, who is within the fold of the statutory protection conferred by the Rent Act or Rent Control Order, the claim or demand for rent cannot, by any means, be regarded as amounting to an intention to waive the earlier notice to quit or as being reflective of an intention to create a fresh contractual tenancy. Finally, a reference may be made to the Judgment of the Supreme Court in Tayabali Jaferbhai Tankiwala v. Ahsan and Co., . In that case, the first notice which had been given by the landlord was for the recovery of arrears of rent and in the second notice an additional ground of termination was sought to be made out. The facts were hence different.

15. The learned counsel for the respondent-tenant has stated that the only defence to the suit for eviction was that the suit must fail on the ground that the subsequent notice dated 17-4-1987 was not supported by a fresh permission of the Rent Controller and would amount to a waiver of the earlier notice. Learned counsel has fairly conceded that no other point is sought to be urged in defence to the suit. In the circumstances, a further remand of the proceedings is not called for. On the specific query of the Court, learned counsel stated that he does not press for a remand since the only defence raised is adjudicated upon in these proceedings.

16. In the circumstances of the case, therefore, I am of the view that the orders of the learned 2nd Joint Civil Judge, Sr. Dn., Wardha dated 23-8-1989, as well as of the learned 2nd Additional District Judge, Wardha dated 19-11-1994, suffer from a clear illegality so as to warrant the interference of this Court in revisional jurisdiction under Section 115 of the Code of Civil Procedure, 1908. Both the Courts below have failed to have regard to the well settled position of law laid down by the Supreme Court and by this Court. I am of the view that the impugned orders of the Courts below, if allowed to stand, would cause a failure of justice and irreparable injury to the applicant within the meaning of proviso to Section 115 of the Code of Civil Procedure. Accordingly, the impugned orders of the Courts below insofar as the decree for possession was refused shall stand quashed. There shall accordingly be a decree for possession as prayed in the suit instituted by the Applicant. The Civil Revision Application is allowed in the aforesaid terms.